Surrogacy under strain

26 March 2021

Pre-pandemic, we saw an upwards trend in surrogacy and increasing numbers of parental orders being granted in England and Wales. In 2011, a total of 117 parental orders were granted, increasing to 374 in 2018 and 444 in 2019. However, latest statistics released by the Ministry of Justice in December 2020 show that just 275 parental orders were granted in England and Wales for the first three quarters of 2020. This suggests a potential decrease on 2019 figures on a pro rata basis of nearly a fifth (approximately 18%) and a potential downwards trend for the first time over the last decade. Will surrogacy continue to remain under pressure in 2021?

The Covid-19 pandemic has unquestionably upended our personal and family lives. It has also created additional delay, anxiety and legal and practical issues for those building families through fertility treatment and surrogacy due to global travel restrictions, lockdowns, delays in treatment, higher risk of illness and general uncertainty brought about by the virus.

As we continue our fight against Covid-19 with our national vaccination programme will access to vaccines and healthcare policy impact surrogacy during 2021? The latest advice in March 2021 from the Joint Committee on Vaccination and Immunisation (JCVI) is that COVID-19 vaccines should be considered for pregnant women when their risk of exposure to the virus is high and cannot be avoided, or if the woman has underlying conditions that place her at high risk of complications from COVID-19. However, COVID-19 vaccines should only be considered for use in pregnancy when the potential benefits outweigh any potential risks for the pregnant woman and baby. Women should discuss the benefits and risks of having the vaccine with their healthcare professional and reach a joint decision based on individual circumstances. As such, will surrogates seek to delay carrying a surrogate pregnancy until they are fully vaccinated? Will the vaccination status of a potential surrogate impact decision-making by intended parents? Will the risk of mutations in the virus which could evade current Covid-19 vaccines influence the terms and timeframes of surrogacy arrangements?

As we continue to navigate the Covid-19 pandemic, there are also ongoing financial pressures influencing the viability of surrogacy arrangements and fertility treatment. The government furlough schemes looks set to wind down later this year. Across the UK, businesses and employers are carefully monitoring economic performance, rapidly changing spending habits and employee head counts. Whilst we are hoping for a swift economic bounce back as restrictions ease, confidence in our economic outlook and  willingness to commit to family building and surrogacy may take longer to settle in practice. Additionally, we have suffered immense loss of life, with over 126,000 deaths in the UK since the start of the Covid-19 pandemic and endured levels of uncertainty and disruption that for many of us has been unprecedented during our lifetimes.

The current pandemic landscape has also resulted in delay in the ongoing work of the Law Commission of England and Wales and the Scottish Law Commission on surrogacy law reform and creation of a new pathway to legal parenthood. It is now expected that its full report and draft legislation will be published in 2022. This in turn pushes back the speed of much needed surrogacy law reform in the UK. You can read more about the Law Commission’s work on surrogacy law reform in my previous blogs:

Law Commission: reforming surrogacy law (15 August 2019)

Perspectives on surrogacy law reform (25 July 2019)

Against this backdrop, it has never been more important to obtain specialist surrogacy, fertility and family building law advice.

Need a surrogacy lawyer? If you are considering, or are part way through, a surrogacy arrangement in the UK or internationally and you would like to discuss your situation or you require specialist fertility, surrogacy and family law advice and assistance please contact expert surrogacy lawyer Louisa by email  or by telephone +44 (0)20 7965 8399.

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